Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Donai v R [2011] NSWCCA 173 Hearing dates: 16 March 2011 Decision date: 05 August 2011 Before: McClellan CJ at CL at [1] Blanch J at [101] Hislop J at [102] Decision: 1. Appeal against conviction upheld and conviction quashed. 2. Order a new trial. Catchwords: CRIMINAL - conviction appeal - murder - tape recorded conversations between appellant and undercover operatives - failure of counsel to address admissibility question at trial - evidence wholly prejudicial - appeal upheld - conviction quashed and new trial ordered. Legislation Cited: Criminal Appeal Act 1912 Cases Cited: Edwards v The Queen (1993) 178 CLR 193 R v Murray (1987) 11 NSWLR 12 R v Hill [2006] VSCA 41 Rend v R (2006) NSWCCA 41 Steer v R (2008) NSWCCA 295 TKWJ v The Queen 212 CLR 124 Tofilau v The Queen [2007] HCA 39; 231 CLR 396 Zoneff v The Queen [2000] 200 CLR 234 Category: Principal judgment Parties: Terry Mark Donai (Appellant) The Crown Representation: M C Ramage QC (Appellant) D Arnott SC (Crown) Jeffreys & Associates (Appellant) Director of Public Prosecutions (Crown) File Number(s): 2007/1450 Decision under appeal Date of Decision: 2008-05-23 00:00:00 Before: Fullerton J File Number(s): 2007/1450 Judgment 1McCLELLAN CJ at CL: Terry Mark Donai, the appellant, was convicted following a trial with a jury of the murder of Pamela and William Weightman in January 2000. He was sentenced to two concurrent counts of life imprisonment. 2He appeals against his conviction and sentences. 3There was no dispute at the trial that the Weightmans had been strangled and died in their home. There was also no dispute that their bodies were then taken from the home in the family car to Heathcote National Park where the car was either pushed over or at slow speed travelled over an embankment running off Heathcote Road onto a fire service road. This was done in order to attempt to simulate their death in a car accident. 4The police did not immediately identify that the Weightmans had been murdered. Some time after the original investigation the police, with the assistance of forensic analysis, established that the cause of death was not a motorcar accident but rather they had been strangled. 5The police suspected that the appellant was involved. In order to assist the investigation an undercover police officer posing as the boss of an organised criminal gang befriended the appellant. Their conversations were recorded on a listening device. 6During the course of a conversation the appellant admitted that he had assisted David Weightman (the deceased's son) shortly after the killings to transport the bodies from the family home to the National Park where they were disposed of. 7In addition to the murder charges the appellant was also charged with the alternative count of being accessory after the fact to murder. The admission made to the undercover police officer presented the defence with considerable difficulty. I discuss these issues in greater detail below. 8The murders occurred in January 2000. The trial took place in 2007. The appellant was sentenced in May 2008. The delay between trial and sentencing was explained in the remarks on sentence of the trial judge. Due to the delay, the appellant also requires an extension of time to seek leave to appeal. 9The notice of appeal against conviction identifies thirteen grounds. They do not involve "a question of law alone" (s 5(1) Criminal Appeal Act 1912) and hence require leave. I would grant the necessary leave. 10The grounds of appeal are: Ground 1:The trial miscarried. Ground 2:The trial judge erred in admitting evidence that was wholly prejudicial to the accused. Ground 3:The trial judge erred in failing to give appropriate directions at the time of the admission of the prejudicial evidence. Ground 4:The trial judge failed when summing up to properly or adequately direct the jury as to how they could use the evidence of the statements made by the accused. Ground 5:The trial judge erred in failing to direct the jury in respect to corroboration. Ground 6:The trial judge erred in failing to reject and/or have stricken from the record an unresponsive answer. Ground 7:The trial judge erred in allowing the witness Weightman to respond to a leading question inviting hearsay Ground 8:The trial judge erred in failing to give the jury a direction on lies. Ground 9:The trial judge erred in admitting of further prejudicial evidence and in failing to sufficiently direct the jury. Ground 10:The trial judge erred in refusing to direct that a witness be recalled. Ground 11:The trial judge erred in her summation of the evidence. Ground 12 The accused was incompetently represented. Ground 13:The verdicts are unsafe and unreasonable in all the circumstances. The prosecution case 11The Crown provided a useful summary of the prosecution case which I have utilised in the following account. 12The dead bodies of William Weightman and his wife Pamela were discovered by a Park Ranger in the Royal National Park at Heathcote on Sunday morning 9 January 2000. Their green coloured Mitsubishi Magna sedan was seen by the ranger over the embankment about 20 metres below wedged against a tree. Inside the car in the driver's seat was Mr Weightman slumped in the footwell, and Mrs Weightman was in the front passenger seat secured by her seatbelt. 13Police attended the scene. In due course, a post-mortem examination was conducted and at that stage the deaths were considered to be accidental. Mrs Weightman died as a result of the combined effects of blunt force head injury and the aspiration of gastric contents. Mr Weightman died as a result of the combined effects of positional asphyxia and the inhalation of gastric contents. There was no inquest. 14The Weightmans had in fact been murdered the day before, on Saturday 8 January 2000. A motorist, Mr Lynch, had around 11 pm that night seen the green Mitsubishi Magna turn into Heathcote Road at an intersection which was 1.7 kilometres from where the Mitsubishi was steered off the embankment. He noticed a driver and a front passenger. On the Crown case, Mr Weightman was on the back seat in readiness to be positioned as the pretence driver. 15In June 2001 concerns were raised about the matter and police commenced to re-investigate. The forensic pathologist provided an amended report to the coroner in relation to each deceased. 16In relation to Mr Weightman, the doctor noted there were bilateral fractures of the thyroid cartilage. A forensic pathologist, Dr Kevin Lee gave evidence that this was rarely seen in motor car accidents and typically found in the compression of the throat in strangulation. Asphyxia had also been a component of Mrs Weightman's death. This also was quite unusual in the course of a motor vehicle accident. It was the kind of occurrence resulting from strangulation or suffocation. 17Toxicological analysis of the blood from each of the deceased showed the presence of a sedative drug (although it was not Serapax to which reference will later be made). Whilst the drug in Mrs Weightman's system would not have caused sedation the same could not be said of Mr Weightman. He had almost ten times the therapeutic level of promethazine in his system. 18In relation to both deceased the doctor noted bruising on their arms and legs which was not consistent with trauma from a road accident, and the extent and severity of which were suggestive of some form of restraint or assault. 19Mr Weightman had an abrasion on the centre of his forehead, one on his chin and one on his left cheek but the pattern of these injuries did not correspond with the steering wheel. There were multiple bruises to his chest, the front part of the bone of the hip, both arms and both legs. The evidence was that these were also unlikely to have been caused in the collision. In particular, three spherical shaped bruises to the left upper arm indicated he had been firmly gripped or pinioned by another person. The right leg also displayed bruising from the mid thigh to the ankle, including the outer aspect of the knee. The left leg had mottled bruising on the thigh and to below the knee. 20Mrs Weightman also had multiple bruises to her head, both arms and right leg. The pattern of these injuries also indicated her arms and legs had been gripped or pinioned by another. 21A crash reconstruction expert, Sergeant Kelly, concluded the car had gone over the embankment at low speed, possibly 5 kph. 22David Weightman was the adopted son of the deceased. They had no other children. He was the sole beneficiary of their estate. He gave evidence in the trial for the prosecution and frankly said his parents were killed so that he could gain by way of inheritance. 23The appellant was a friend of Weightman. Following the killing of his parents Weightman fell out with the appellant because apparently Weightman made no effort to pay him money. There was an issue in the trial as to whether Weightman owed the appellant money for having participated in the murder or whether the appellant had simply lent money to Weightman for some unidentified reason. 24There was evidence in the trial of the appellant pursuing this debt. A month after the deceased died Mrs Urwin, Mrs Weightman's sister, received a call from the appellant claiming Weightman owed him $17,000 which he said he had lent David for a motor bike. This did not make sense to Mrs Urwin because she and her husband had lent money themselves to David to purchase a motorbike. On the appellant's own admission he was in possession of a large sum of cash shortly after the death of the deceased. His explanation was that he made $18,000 to $20,000 in a couple of months from quite a few jobs in Wollongong and lent Weightman $6,000. 25In February 2004, almost four years after the Weightmans' death, David Weightman confessed his guilt to his aunt. Mrs Margaret Urwin had strongly suspected her nephew's involvement in the murder and confronted him on Sunday 1 February 2004 on the driveway of his home at Bradbury when he confessed. When he first admitted his guilt to her he nominated the appellant as being the person implicated with him. He told Mrs Urwin that "Terry" killed the deceased but shortly thereafter retracted it. Mrs Urwin's husband and other members of her family were present when this occurred. Apparently Mrs Urwin said to Weightman, "All I want to hear from your mouth is what you did to my sister and her husband?" He replied so that all could hear, "Terry killed them". Mrs Urwin and Weightman then moved higher up the driveway so that they were not beside the others. David Weightman then said to her "I killed them. I've fucked up me life. I'm an arsehole (or shithead)". When Mrs Urwin then asked him if Terry was involved he said "no" (T 48-53). 26The following day, 2 February 2004, David Weightman was taken into police custody and interviewed. He admitted his involvement in the murder of his parents. On 10 October 2005 he entered pleas of guilty to their murder. On 23 December 2005 he was sentenced, receiving a discount for his assistance to the authorities. 27When giving evidence David Weightman said that he met the appellant about a month or two prior to the murders. About 2½ weeks before his parents' death he was invited to the appellant's house at Jindabyne. Weightman told him that he expected to be the sole beneficiary of his parents' estate consisting of considerable assets. During the journey back to Campbelltown they spoke about their mutual interest in motorbikes. Weightman described what he called a "surface conversation" with the appellant concerning his parents if they died. The appellant told David that if "he took care of them" (his parents) he expected to be given a new "Hayabuza" motor bike, "at the time the fastest bike in the world... the beez neez" (T 142), as payment. Such a motorbike was worth about $18,000 to $19,000. Weightman made it clear to the appellant that he did not want to be there if it happened and hence not haunted by bad dreams and also that he did not want his parents to feel pain. 28Weightman gave evidence that on Saturday evening 8 January the appellant gave him some Serapax tablets to put in his parents tea with the object of putting them to sleep. Weightman put two or three tablets in each cup of tea he made for his parents and then went outside to where the appellant was waiting. He told the appellant, "There you go Terry, I've given them the tablets" and the appellant went inside whilst he waited outside. Weightman did not actually see his parents drink the tea. His mother took her cup upstairs and he left his father on the couch with his cup. 29After hearing his mother scream Weightman gave evidence the appellant emerged from the house breathless and sweating. The appellant said, "I need a hand with your dad" as the effort in killing the mother was considerable and had taken something out of him. They went inside the house together towards Mr Weightman who was still on the couch. They struggled with Mr Weightman. David held his father's chest, arms and a bit of his leg section whilst the appellant put a pillow over his father's face suffocating him. 30Upstairs David Weightman's mother was already lying dead on the bed. Together they carried her down the stairs to the garage. Weightman carried her legs and the appellant carried her upper body. She was placed in the front passenger seat of the car. They carried Mr Weightman and placed him in the back section of the car on the floor. He then drove his parents' car following the appellant to the location in the National Park where they pushed the car over the edge of the embankment. Before doing so Mr Weightman was moved into the driver's seat, the car was switched on and the door was shut. Weightman said the car was not going very fast when it went over the embankment. 31Weightman said the appellant took the pillow from the house that was used in the killing. 32The appellant was interviewed by the police on 19 November 2002 when, at that time, he was living in Cooma. He denied any involvement in the death of the Weightmans or disposal of their bodies. He said that on the date they died he was with his mother at Windang, adding "she'll verify that. If you ask any of the residents they will verify that." His mother lived in a caravan at Oaklands Village, Windang. He further added his mother's partner, Paul, was also at the caravan. When the appellant later spoke to undercover police (4 years later) he said that this alibi was false. 33He further told police that he had known Weightman for about 1 year but denied that they were "fairly close friends at that stage", preferring the description "acquaintances". He said he had done some concrete resurfacing for them and had been paid "fourteen hundred dollars I think" for the work and they had been happy with the work he had done. He said that he lent Weightman $6,000 to help him get a motor cycle after his parents died but was never repaid. He went on to say Weightman had two bikes - a Harley Davidson and a Japanese road bike - and the money was to help him purchase the Harley. He said at the time of Weightmans' death he had made about $18,000 in the previous months, which his mother could verify. He said he did not "put anything in the bank because they slug you, you know". 34In March 2004, six or so weeks after Weightman admitted to his aunt his involvement in the murders, a police undercover operative, UC3 went to Cooma, where the appellant was known to be residing in order to speak with him. His purpose was to attempt to have the appellant visit Weightman in custody and possibly provoke admissions. The undercover operative obtained the appellant's mobile telephone number from people who knew him. UC3 then made telephone contact with the appellant and they met in a park on 26 March 2004. UC3 told the appellant that Weightman wanted to see him. UC3 gave the appellant $200 towards his expenses in visiting Weightman. 35The police thereafter put into place an undercover operation of the type considered in Tofilau v The Queen [2007] HCA 39; 231 CLR 396. Police, posing as members of an organised criminal gang, interacted with the appellant and gained his confidence to reveal what criminal acts he had done in the past and what he was prepared to do for the gang. 36Evidence was led of taped confessions between the appellant and a number of undercover operatives. Between 13 December 2005 and 16 June 2006, UC2 (known as Jack Simpson) had a large number of meetings and telephone conversations with the appellant. This culminated on 16 June 2006 with the appellant being introduced to UCl, the purported head of the gang. 37It was the Crown case that whilst the appellant made significant admissions in this conversation with UCl he nonetheless told him a sanitised version of the truth minimising his own role. It was suggested that he did not "fully reveal" himself to the undercover officer but only partly revealed himself. 38At the commencement of their meeting UCl informed the appellant that there was a "problem" and that Weightman had spoken to the police about 3 or 4 weeks earlier. UCl quizzed the appellant about it. 39The appellant told UCl that Weightman had killed his parents after which Weightman had contacted him and asked him how to dispose of the bodies. The appellant said he offered the suggestion "put 'em over a cliff". The appellant said when he got to the Weightman's house the bodies were on the garage floor. Weightman had suffocated them with a pillow. He said Weightman subsequently disposed of the pillow at a charity bin in Campbelltown. He said Weightman had killed his mother in bed and his father downstairs and dragged them to the garage on his own. The appellant then drove the car with the two bodies in it to Heathcote Road whilst Weightman followed in another car. In exchange for his assistance the appellant was promised "15 grand". 40The appellant also told UCl that after the event he had lent David Weightman some money to buy a motorbike. Weightman promised to repay this money plus the 15 grand but never did. 41At the conclusion of the operation UCl left the room and the police entered. The appellant was placed under arrest and taken into custody. 42On 17 June 2006 at the Parramatta Bail Court, the appellant attempted to pass a piece of paper to a woman in the public gallery. It was intercepted by a Corrective Services officer and given to the prosecution. The note proclaimed the appellant's innocence of involvement in the murders. It related that Weightman "asked me if I could alibi him for the day he killed his parents. He then told me everything that he had planned and told me what he had done. I told him to fuck off and left". 43Mr and Mrs Weightman had two cars. The one which was not used to dispose of their bodies was a white Hyundai motor car. There was evidence that David Weightman either gave this car to the appellant or allowed him to use it after the crime. Shortly after the deceased were killed the appellant and Weightman were together at a cafe in Berridale run by Paula Harrison. The appellant, who knew Ms Harrison, told her that Weightman was giving him his mother's car. Kaye Byron, who had at one time previously been in a relationship with the appellant, saw him one day sometime after the deceased were killed in possession of this car. 44There was evidence rebutting the suggestion that the appellant had the funds he said he had to give to Weightman. Merilene Stoyles was in a relationship with the appellant from May 2000 until August 2000. She gave evidence that he was not employed during this time and, apart from a little bit of spray concreting work, was reliant on the single parent pension. The evidence indicated that he did not contribute to household expenses, lived off her, and borrowed a lot of money from her which he never paid back. 45The appellant's Commonwealth Bank account for the period September 1999 to June 2000 indicated his only source of income to be social security payments except for a deposit of $4,000 on 27 October 1999 and $2,000 on 22 February 2000. On 5 November 1999 the appellant borrowed $12,000 from the Westpac Bank by extending his home loan. This loan was in the joint names of him and Kaye Byron. The withdrawal slip was signed by him alone. 46The appellant demonstrated a keen concern for David Weightman following his parent's death. The appellant told Ms Stoyles that Weightman was his best friend and he was concerned about him because his parents had died. He told her he had lent him money after his parents had died to help pay for funeral expenses. The appellant had told her this had been something like $12,000 or $20,000 - she could not remember which one exactly. This was apparently false because there was evidence from the Urwins that they had provided the money for the funeral expenses. 47I have already referred to the fact that there was evidence of the appellant contacting Mrs Urwin about money he said Weightman owed him. Ms Stoyles gave evidence that the appellant made numerous telephone calls to Weightman asking for money. The evidence on one occasion indicated that Neil Murray visited Weightman's home just prior to the latter going to England. The appellant arrived. After the appellant left the evidence indicated that David Weightman said to Mr Murray, "Terry said I owe him $17,000". 48Mrs Weightman owned a white Hyundai motor car. This was part of the estate that David Weightman was to inherit. Ms Byron, the appellant's former girlfriend gave evidence that the appellant told her that David Weightman asked him to take the car off him so he would not have to see it around the streets reminding him of his parents. The appellant suggested his girlfriend buy the car but this did not happen. 49Ms Harrison was a friend of Ms Byron. Ms Harrison, either before or after Christmas 2000 was introduced by the appellant to "David". Her description of "David" (dark complexion, dark hair and the mention that David's parents had just died) matched David Weightman. She gave evidence that either the appellant or David said the husband and wife were drugged and they were killed by another vehicle and that they had a lot of money. The defence case 50The appellant did not give evidence. Evidence was adduced duringcross-examination of a police officer that the appellant, apart from trafficmatters, had no prior convictions. The appeal 51Ground 1 states that the trial miscarried. This was advanced in the nature of an assertion of the consequences of success on other grounds of appeal. 52Ground 2 is concerned with the contents of a recording of a conversation between the appellant and the police. There was also a tape recording of material obtained from a listening device tendered at the trial which was not the subject of objection and is not the subject of complaint in the appeal. That tape contained the conversation with the undercover police officer which occurred in a room at Coogee on 16 June 2006 when the appellant admitted being an accessory after the fact to the murders in that he assisted Weightman to dispose of the bodies. It was at the end of this conversation that other police officers entered the room and arrested the appellant. Realising that he had been speaking with a police officer the appellant immediately said "No, everything I have told you is not true." 53The controversy in this appeal relates to the earlier occasions on which the appellant spoke with police officers. Although it is accepted that part of those conversations were properly admitted it is asserted in the appeal that other portions were not. No objection was taken to the tender of any part of the recording at the trial and accordingly leave under Rule 4 is required to raise this ground. For reasons which emerge below I would grant that leave and uphold this ground of appeal. 54I have previously referred to the controversial evidence but greater detail is appropriate. 55Exhibit V recorded the conversation between UC3 and the appellant in a park at Cooma. UC3 told the appellant that Weightman, who was in gaol, wanted to see him. UC3 told the appellant that he "did a bit of this and that" and that Weightman had worked for him. UC3 told the appellant that he had taken the trouble to track him down because "keeping him (Weightman) happy inside is somethin' that would ah, you know, be in my best interest as well. So while he's happy, you know - and if that means comin down here and askin you to go and see him, then that's what I'm willin to do." During the course of the conversation the appellant said: "Mate, the last thing I want is any fucken hit men after me ... I've got guns at home. I wont hesitate to use them ... you know, if someone fucken comes to my house and threatens me or my family I'll use them." 56There is another passage in the transcript where there is a reference to "someone's been done for fucken' drugs." There is also a passage where the appellant told UC3 "like, I've got a family. I've got kids and shit. I'm not going to get involved in any shit too. Like, I do shit years ago mate. I used to do some bad stuff." 57Perhaps the most damning admission made by the appellant are the passages where the appellant made reference to his willingness to undertake a contract killing and said that he had murdered two people in the past and organised for them to be disposed in vats of hot iron. It is unnecessary to set out the transcript of the complete conversation. The following extract is sufficient: "Is there anything that you wouldn't be prepared to do with us? Like, where would you draw the line?" Appellant:I'd never kill a child.. that's about as far as I'd draw the line. Yeah? No dramas with adults, and stuff like that? Cause you know from time to time that sort of stuff comes up? Appellant:Mmmm Tell me what you think it's about Appellant:Oh. Could be numbers of things. It could be invading other people's privacy, I guess. It could be knocking people off. It could be a very sticky situation. Well, you're on the line, mate. We're talking about knocking people off. Appellant:Yeah. Yeah. Contract killing Appellant:Yeah You know Appellant:Contract killing Um, Or either contract killing, or um, if, if something in our way. If somethings in our way and it, and there is no alternative. Appellant:Eliminate it Yeah Appellant:Yeah Take them out of the picture Do you have any problem with that? Appellant:No, its part of the parcel You sure? Appellant:Yes Appellant:I can hunt down an animal, kill an animal. Its no different to a human.. No I wouldn't find it hard Jack. I wouldn't find it hard to kill someone. As long as it wasn't someone too close .. I mean, like brother, fuckin auntie, all this type of shit.. Look, look it comes down to it, yes I can do it. You mentioned to me, um a while back that you'd knocked a couple of blokes over, over a deal of grass. What was that about? Appellant:He broke in me house and stole cash and grass off me.. a pound And what did you do with him? Appellant:Fixed him up. What do you mean, you, you knocked him? Appellant:Mm Yeah? Well did you just leave the body there, or did you get rid of it? Appellant:No, I had a friend that worked for the SRA. Yeah Appellant:He's a blacksmith Yeah? Appellant:And they have these big vats full of hot iron. He went straight in. And you hit him with a .357 you said? Appellant:Mmm." 58The appellant advances a number of submissions with respect to this evidence. Senior counsel on his behalf emphasised that evidence disclosing bad character is generally not admissible against an accused person. His admission of having committed other crimes and his willingness to commit crimes was not relevant to his prosecution for the present offences. The evidence was not led as tendency evidence, was not admissible as context evidence and was in any event wholly prejudicial to the appellant. 59The appellant submitted that the admissibility of the evidence was never addressed at the trial and that, furthermore, her Honour failed to give appropriate directions in relation to it, either at the time of the admission of the evidence or in her subsequent directions. 60The Crown responded to the appellant's submissions by submitting that merely because evidence which is otherwise admissible reveals another criminal offence it must not necessarily be rejected. I considered the issue in Steer v R (2008) NSWCCA 295 at [33]. I need not repeat my earlier remarks. The appellant does not take issue with the view I expressed in Steer but rather submitted that in the circumstances of this case the evidence was of little if any evidentiary value and was overwhelmingly prejudicial. 61Counsel who appeared for the appellant at the trial gave evidence to this Court. He explained that he made a deliberate decision not to object to the evidence. He said that he believed the position was covered by the decision in Tofilau but was not aware of the decision of the Victorian Court of Appeal in R v Hill [2006] VSCA 41. 62Tofilau was concerned with whether admissions made to undercover police officers who were posing as criminal gang leaders were voluntary. The High Court determined that they were voluntary and furthermore that there was no reason of public policy to reject their admission into evidence. 63The issue was also considered In Hill where the police used similar methodology to that used in Tofilau and the present case. Although the evidence was admitted in Hill Buchanan JA at [113] recognised "the collateral prejudice" that could be occasioned where the jury came to believe that an accused person was actively involved with criminals. 64Whether or not the jury believed everything the appellant said to the police to be true the evidence irretrievably prejudiced the appellant when the jury came to assess his denial of any involvement in the killings or disposition of the bodies as against the evidence that he was involved. Weightman's evidence in relation to the appellant made his conviction likely. The picture of the appellant reflected in his conversations with police made his conviction inevitable. 65Ground 12 of the grounds of appeal complains that the appellant's counsel at trial did not competently represent him. As I have indicated no objection was taken to the evidence of the appellant's propensity for serious criminal acts. I am satisfied that it should have been and that the failure to do so has occasioned a miscarriage of justice. Although an appellate court will be slow to intervene when difficulties have arisen because of a deliberate tactical decision by defence counsel TKWJ v The Queen 212 CLR 124 it would have been possible to allow parts of the conversation into evidence to support a submission that the appellant was big noting himself without the material which overwhelmingly blackened his character. This is one case where the injustice occasioned to the appellant should be remedied and a new trial ordered. 66Ground 2 is sufficient to dispose of the appeal. However there are a number of further grounds of appeal. 67Ground 3 complains that the trial judge erred in failing to give appropriate directions at the time of the admission of the prejudicial evidence. Ground 4 complains that the trial judge failed when summing up to properly or adequately direct the jury as to how they could use the evidence of the statements made by the accused. 68These grounds assume that the evidence was properly admitted. Because I am of the opinion that the evidence should not have been admitted these grounds have little significance. In my opinion there was nothing which the trial judge could effectively have done to redress the difficulties created by the admission of the evidence. 69Under ground 5 the appellant submitted that the jury should have been directed that they could not use the statement of the appellant that he had assisted Weightman in the disposal of the bodies as in any way corroborating Weightman, in the sense of giving weight or adding support to Weightman's evidence that the appellant had committed the murders. The appellant complains that the jury was not directed that they could not use this evidence to corroborate or add weight to Weightman's evidence that the appellant was the murderer, but that they were very likely to reason in this manner. 70In the alternative it was submitted that the trial judge erred in failing to direct the jury as to what parts of the appellant's statement could be used as corroboration or support and how. It was submitted that a full Murray ((1987) 11 NSWLR 12) direction was required. 71I do not believe there is substance in this ground. It was reasonably open to the jury to take the view that the appellant's admitted course of conduct to the undercover police officers was more consistent with Weightman's evidence that the appellant had participated in the murders than not. Accordingly, the evidence would tend to confirm the truth of Weightman's evidence. 72With respect to the issue of a Murray direction I am not persuaded that her Honour did not direct the jury as she was required to do. She told the jury on repeated occasions that acceptance of the truth and reliability of David Weightman's evidence was essential to prove the Crown case of murder against the appellant. Her Honour instructed the jury to "examine and scrutinise David Weightman's evidence with great care and emphasised that it was only through Weightman that they were told of the appellant's planning and participation in the murders. Her Honour told the jury to carefully consider David Weightman's honesty and reliability and reminded the jury that when assessing his evidence they should be mindful of lies which he had told to psychiatrists and an insurance company. 73Ground 6 relates to a question and answer given by UC2 in evidence at the trial. The exchange was as follows: "Q:Why was it your expectation that, at the meeting that occurred on 16 June 2006, Mr Donai would perhaps confess in his part of the murder of the Weightmans. A:I got to know Terry, as you are aware, in about November, I think it was from memory 2005. I spent a considerable amount of time with Terry, over which time we spoke about all sorts of things. Given the background of the case and getting to know - sorry, the defendant at the level at which I was purporting to operate, it became my belief, my firm belief, that on the day that the defendant was arrested that it was in fact he who had murdered the Weightmans." 74The appellant submitted that the answer was not responsive to the question, was highly prejudicial and should have been struck out and the jury told to ignore it. 75It was submitted that the question asked was unusual and invited a response which was inadmissible. The response which was given should not have been admitted. 76However, it would have been no surprise to the jury to be told by a police officer who had been involved in the investigation that he or she believed that the appellant had been involved in the murders. The evidence was addressed by her Honour who told the jury in clear terms to ignore any view which a police officer had about the guilt or innocence of the appellant. That direction was sufficient to deal with any problems. 77Ground 7 is concerned with the following questions and responses in the evidence in chief of David Weightman: "Q:Having had the initial conversation with Terry Donai in relation to your parents, did you say anything to any other of your friends before your parents died about what might happen in the near future? FLYNN:I object to this, your Honour. CROWN PROSECUTOR:If I confine it to a 'yes' or 'no' answer and a who rather than the substance, your Honour? HER HONOUR:What is the objection, Mr Flynn? The question is - is this the import of the question: If anyone else was told before the killing and the accused's intention to kill the Weightmans? CROWN PROSECUTOR:That's right. HER HONOUR:What is the objection? FLYNN:I withdraw the objection, your Honour. I am just concerned about the witness volunteering information. HER HONOUR:Just 'yes' or 'no', Mr Weightman. WITNESS:Yes, ma'am. HER HONOUR:Q:Was anyone else told? CROWN PROSECUTOR:Q:Who was that person A:That was Stephen Sullivan." 78The appellant complained that the trial judge should not have reformatted the question in a leading form. However, this was clearly done with the consent of both counsel and the complaint is unjustified. 79It was further submitted that because Stephen Sullivan was not asked questions about this issue when he gave evidence the trial judge should have directed the jury to ignore it. No such direction was sought. It was a minor matter and of little moment during the trial and if there be a difficulty it has not contributed to any miscarriage of justice. 80In relation to ground 8 it was the Crown case that there was no loan from the appellant to David Weightman and that accordingly the money that he sought from Weightman following the killings was his reward for his involvement in the enterprise. The appellant gave differing accounts for the money, including that it was repayment of a loan to facilitate Weightman acquiring a motorbike. 81The Crown Prosecutor did not submit to the jury that the appellant's account contained lies told out of a consciousness of guilt. However, the Crown Prosecutor did tell the jury on more than one occasion that given the inconsistencies in the appellant's evidence he lacked credibility. There being no submission that lies were told out of a consciousness of guilt an Edwards direction was not required (Edwards v The Queen (1993) 178 CLR 193). 82Presumably the appellant was submitting that a direction of the type contemplated in Zoneff v The Queen [2000] 200 CLR 234 was required. The appellant emphasised the fact that her Honour said in the course of her summing-up: "It is the Crown case that the accused has never been known to give a consistent reason for the money owed to him or a consistent claim in a dollar amount for the money owed him because he has been unable, for obvious reasons, to reveal the real reason for the debt." 83The appellant submitted that this summation to the jury of the Crown case made it clear that the Crown was suggesting that the appellant had deliberately lied and that his lies reflected knowledge on his part that telling the truth would implicate him in the offence. It was submitted that such an approach required a Zoneff direction even if the Crown did not rely upon the evidence as consciousness of guilt. 84The line of reasoning suggested by the appellant would involve the jury in drawing inferences. Before the passage complained of her Honour had reminded the jury that the money could have been for a motorbike or possibly money to spend on drugs. The risk of the line of reasoning complained about in the appeal did not present itself to her Honour or either counsel. No direction was sought. James J in Rend v R (2006) NSWCCA 41 at [69] said: "In R v Douglas [2005] NSWCCA 419 this Court referred with approval to what was said by Hunt CJ at CL, with the concurrence of the other members of the Court, in R v Tange (1997) 92 A Crim R 545: 'In my view, even in cases where the lie is relied upon by the Crown only in relation to the credit of the accused, it is best for the judge to direct the jury that they should not find him guilty simply because he has told a lie, but it is not an error where that has not been done, and it is even less meritorious as an appeal point when the trial judge (as here) has not been requested to do so.'" 85To my mind this ground of appeal lacks merit. 86Ground 9 is concerned with a note passed by the appellant to his girlfriend on 17 June 2006 at Parramatta court. The note was admitted into evidence. The note both proclaimed the appellant's innocence and said David Weightman asked him to provide a false alibi. 87I am not sure what complaint is now made about the matter. The note did not support the appellant being involved in the murder and it was not suggested to the jury that it was prejudicial to the appellant. The trial judge referred to it in passing. I can identify no prejudice to the appellant from the admission of the note or the manner in which it was dealt with in the course of the trial. 88In relation to ground 10, during the trial it became apparent that Weightman had sought to resile from his pleas and contest his convictions in this Court. Trial counsel sought to have him recalled but the judge rejected the application. These events occurred during the course of defence counsel's address. The appeal documents were examined and in the words of her Honour reveal that "because Weightman didn't physically handle his mother in the same way he physically participated in handling his father in the course of him being killed, Weightman's got it in his thinking that he should not have been convicted of that murder. I also infer that, on any view of the principles of common purpose, he was, on his own admission, unquestionably guilty of the murder of his mother notwithstanding the fact that he did not in any way physically manipulate her or handle her in the course of her being asphyxiated." 89Defence counsel did not seek to put any other interpretation on Weightman's appeal. Her Honour proceeded to decline the application which was effectively abandoned. There was no reasonable basis for a belief that further cross-examination of this topic would have been of assistance to the appellant. 90Under ground 11 of the appeal the appellant makes two complaints. During the course of her summing-up the trial judge said: "The Crown asks you to ask yourselves what reaction the accused may have had to being challenged as to the professionalism of the job or the charge involved. The Crown says whilst the accused has been in pains to tell people, including Ms Byron, Ms Stoyles and the police, how wonderful Mr and Mrs Weightman were as people and parents, that David Weightman gives quite a different picture of the relationship between Mr Donai and his father as the contract work was being done at the family home. You would be perhaps assisted by being reminded by me of the evidence of Mrs Margaret Urwin and her husband Alan. Each of those two people gave evidence that Mr William Weightman had reported to them that he was not happy with the job." 91The first complaint is that this last paragraph is factually incorrect. There is no substance to this. Evidence was adduced from Margaret Urwin (the sister of the deceased Mrs Weightman) in cross-examination that Weightman had told her that the appellant had had an argument with her sister and brother-in-law about the stencilling. She also said the deceased's friends, Chris and Alan Williams, 'knew something about it' (the argument). Asked what she knew about the specifics of the argument, Mrs Urwin said: '... I took it to be that Bill wasn't happy and, you know, I wasn't really interested. You know, I didn't really know anything about it, but I think Bill just wasn't happy with the job. I can't extend any more on that, Mr Flynn, because I really don't recall.' 92When asked about the stencilling, in his evidence in chief, Mr Urwin said: '...I do remember I mentioned about the stencilcreting. I actually said it looked quite nice and Bill said he wasn't happy with it.' 93The second complaint, which also has no substance at all, is that her Honour's summing up incorrectly referred to the deceased having been administered Serepax. 94The matter was dealt with correctly by her Honour in the trial when she said: "There was no Serepax detected on analysis of the body of either of the deceased, Mr and Mrs Weightman." 95On sentence, however, her Honour mistakenly referred to David Weightman administering Serepax tablets. This factual error in the sentencing remarks was immaterial to the sentence ultimately imposed. The point was that temazepam was found in the system of both Mr and Mrs Weightman. There was evidence that temazepam has the same qualities as Serapax (otherwise known as oxazepam). Both are benzodiazepine drugs having sedative effects used for the short-term management of insomnia in adults. Dr Gall gave evidence that there was at least twice the concentration of temazepam found in Mr Weightman's system during the post-mortem than in Mrs Weightman's system. The concentration of temazepam in Mr Weightman's blood system was 0.20 milligrams per litre "so", according to Dr Gall, "it may cause a degree of sedation, so drowsiness." On the other hand, Mrs Weightman had much less - less than 0.10 milligrams per litre and too low to quantify and too little to have an effect upon her wakefulness. 96Many complaints are made under ground 12. Some of them concern issues arising in relation to grounds of appeal which I have already considered. Because I am satisfied that the appellant must succeed on ground 2 and a new trial ordered it is unnecessary to consider this ground further. However, as I have indicated I am persuaded that a serious miscarriage of justice arose from the evidence of the conversation with the appellant. Competent counsel should have objected to this evidence which has occasioned a miscarriage of justice. 97Ground 13 is concerned with the unreliability of the evidence of Weightman. His credibility was in issue. The extent to which his evidence could be accepted was a matter for the jury who were given significant warnings about his reliability by the trial judge. 98Apart from the evidence of Weightman there was significant evidence to which I have referred pointing to the appellant's guilt. However, notwithstanding this evidence I am satisfied that a substantial miscarriage of justice has occurred. The appellant is entitled to a trial according to law upon evidence properly admitted at his trial. 99Although the appellant included ground 13 in his notice of appeal his counsel accepted that if a substantive ground of the appeal succeeded the appropriate order would be that there be a new trial. Sentence 100The appellant also sought leave to appeal against his sentence and sought to raise three further grounds of appeal. As I am persuaded that a new trial is necessary I do not propose to consider these matters further. ORDERS 1.Appeal against conviction upheld and conviction quashed. 2.Order a new trial. 101BLANCH J: I agree. 102HISLOP J: I agree with McClellan CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2012